Angela and Adam are the parents of two beautiful children. They agreed that Adam would get a vasectomy so that they would not have any more children. A year after a doctor performed a vasectomy on Adam, Angela found out that she was pregnant.
Ben and Marti, a couple in their forties, were excited about the birth of their fourth child. They were concerned about the higher risk of birth defects because of their age, but the doctor assured them the baby would be fine. The doctor told them there was no need to test for birth defects, even though such tests are routine for pregnant women over the age of 35. Ben and Marti’s baby was born with severe birth defects that would have been detected by the routine tests.
Wrongful pregnancy occurs when someone undergoes a sterilization procedure, such as a vasectomy or a tubal ligation, but the procedure does not preclude pregnancy and the birth of a child. Another common term for this is wrongful conception.
LEARNING THE LINGO
Wrongful pregnancy/wrongful conception: A claim by parents who underwent a sterilization procedure but later gave birth to a child. In states that recognize wrongful pregnancy actions, the mother may typically recover damages for pre- and postnatal and delivery expenses, pain and suffering incidental to pregnancy and delivery, loss of income, any expense of corrective medical treatment, and loss of consortium (i.e., the conjugal fellowship of husband and wife, which includes sexual relations).
It used to be that parents were not allowed to bring lawsuits for wrongful pregnancy or conception. That has changed over the past couple of decades. Now most courts agree that parents can bring a claim for wrongful pregnancy, but courts continue to disagree as to what costs the parents can recover.
Some states allow parents to recover only those costs associated with pregnancy and delivery, such as:
For years doctors and hospitals have argued that when a woman becomes pregnant in this situation, she should have an abortion or give the child up for adoption in order to lessen the cost. So far this has not worked in court, and it is doubtful it ever will.
No. Most wrongful pregnancy cases involve the unplanned birth of a healthy child. The majority of states allow claims for wrongful pregnancy. Parents can usually get reimbursed for the ordinary medical expenses directly associated with the pregnancy and the birth of the child. A few states let the parents sue the doctor for all of the expenses in raising the child. These states look at the financial burden a child can place on a family of limited means.
A few other states believe that it is not possible for parents to be harmed by the birth of a healthy child, so parents are not allowed to sue for wrongful pregnancy. Some courts say that the value of life outweighs any costs to the parents. They believe that a newborn should not be looked at as property, with costs and benefits assigned to it. There are also courts that believe that allowing parents to recover the costs of raising a child creates emotional harm by making the children feel they are not worth the cost of being raised.
Some states allow parents to get reimbursed for the costs of raising the child, minus the beneficial value of having a child. Deciding how much monetary value to assign to having a child is a difficult task, though. How much is a child worth? Courts continue to struggle with deciding on the value of a child’s aid, companionship, and comfort to parents. Still other courts warn that allowing actions for wrongful conceptions will make doctors decide to stop performing sterilizations altogether.
Wrongful pregnancy claims are different from claims for wrongful life. In a wrongful life claim, the baby brings the claim by arguing that, but for the doctor’s negligence, “Mom would not have become pregnant and I [the baby] would not exist.” Very few states will allow wrongful life claims. Courts consider it against public policy to agree that life is less desirable than nonlife. The legal theory is that the doctor owes a duty to the mother, but not the fetus, so the baby cannot claim wrongful life.
LEARNING THE LINGO
Wrongful life: A type of medical malpractice claim brought on behalf of a child that argues that the child would not have been born but for the negligent advice to, or treatment of, the parents.
There are two main situations in which parents bring claims for wrongful birth. First, the father or the mother underwent a sterilization procedure that is somehow faulty, and the couple becomes pregnant again. This claim is rooted in medical malpractice law. In the second situation, a pregnant woman is not informed that her child may be born with birth defects, thereby losing her choice as to whether to continue the pregnancy.
The theory behind a wrongful birth claim is that parents should be given reimbursement for some of the economic costs of raising the child. It is not an attempt to make the child feel unwanted.
In 1934, in one of the first wrongful birth cases, a Minnesota husband underwent a vasectomy because the wife’s doctor told them she might not survive another childbirth. His wife later became pregnant. When the husband sued the doctor for wrongful birth, the court ruled that the vasectomy was to protect his wife’s life, not his, and that the husband should feel fortunate to be blessed with the fatherhood of another child.
In 1957, a Pennsylvania father lost his claim for the wrongful birth of his child. The court stated that to let the father make the doctor pay for the costs of raising the child would force the doctor to pay for the fun, joy, and affection that the father would have in rearing and educating the child.
Health care providers have a duty to give you any significant information about tests that will tell you the likelihood of your future child being born with mental or physical defects. They also have a duty to perform the tests accurately. You have the right to prevent the birth of a baby with mental or physical defects, either by not conceiving in the first place or by terminating the pregnancy. This right is granted to a woman for the most part by the constitutional provisions that allow her to have an abortion.
As you can well imagine, this is a hotly contested issue among abortion rights advocates and foes. On one side is the right to be fully informed about the well-being of the child you are expecting. On the other side is the doctor who may be opposed to abortion. Keep in mind that wrongful birth laws do not require doctors to perform abortions. These laws simply require that doctors give you information on tests that measure the genetic health and the status of the fetus. The decision is then up to you.
It is not the doctor’s right not to decide to tell you about possible problems with the child you are expecting. You need that information in order to make choices for you, your family, and your baby. When the doctor does not give the information you need to make that choice—either by not telling you about routine tests or by failing to tell you the results—that is the basis for a wrongful birth.
LEARNING THE LINGO
Wrongful birth: A medical malpractice claim brought by the parents of a child born with birth defects. The parents argue that the doctor’s negligence deprived them of the opportunity either to avoid conception altogether or to terminate the pregnancy.
To bring a wrongful birth claim for a baby born with birth defects, you will have to show that:
No, not all states allow you to bring claims for wrongful birth. Only a handful ban wrongful birth claims outright. About half the states have considered banning such claims. Some states require the parents to prove that the doctor “caused” the birth defects. Of the states that do allow wrongful birth claims, few agree on what you should receive if you win your claim.
LEARNING THE LINGO
Duty: An obligation on the part of the doctor that requires her to act according to a standard of conduct to protect her patients against unreasonable risks.
The majority of states will not allow you to be reimbursed for all the expenses involved in raising a child. They allow you to recover only those costs that come about from raising a developmentally disabled child. The public policy concern is that developmentally disabled children will be treated differently by their families as well as the law, making them feel as though they are inferior. This concern has to be balanced with the fact that medical treatment for a developmentally disabled child is so costly that it can financially ruin a family. It is a terrible stress for a family when they are forced to go on public assistance because they have lost their home and savings to pay the medical costs of one child.
In Florida, parents sued for wrongful conception of their twins. One child was born with birth defects. The other child was healthy. The parents were not allowed to recover the costs of the healthy baby. The parents were granted reimbursement of the extra costs of raising the child with birth defects.
With the constant advances in technology, more and more premature babies are surviving because of new medications and machines. The question is whether surviving is the same as thriving, or, in other words, whether being alive is the same as living. In Houston, Texas, a woman went into labor only 22 weeks into her pregnancy. There was little chance that the baby girl would survive. The baby’s parents told the doctors that they did not want artificial life support put on their child.
The doctors, following standard procedures at the hospital, placed the baby on artificial life support. At seven years old, the girl was severely retarded, suffered from cerebral palsy, and could not see, walk, talk, roll over, or feed herself. The parents sued the doctors, claiming that by ignoring their wishes to keep their daughter off life support, the doctors caused the girl’s wrongful birth.
This is a unique wrongful birth claim. Regardless, a jury awarded the family a multimillion-dollar award, finding that the doctors should have obeyed the family’s wishes to keep their daughter off life support so that, in essence, nature could run its course. Whether a jury in another part of the country would reach the same conclusion is unknown.